Risk of libel in freedom of the press

Risk of libel in freedom of the press

Patrick Guntensperger
Business consultant
Jakarta
ttpguntensperger@hotmail.com

One of the cornerstones of a democratic society is a free
press. Freedom of expression is therefore, one of the very first
freedoms to be curtailed when a democracy is being undermined,
either as a prelude to a coup d'etat or as an early step in the
process of gradual tyrannization.

Those of us in the business of the dissemination and exchange
of ideas tend to support the more extreme versions of press
freedom while those concerned with law and order and the security
of the existing regime lean towards a more restrictive
interpretation (assuming they support the concept at all). Not
surprisingly, this issue is one that Indonesia is grappling with
during the exhilarating process of democratization. It is right
and just that freedom of the press should be a contentious issue;
there are compromises that must be made in implementing it and
every compromise represents a cost.

On the one hand, few thoughtful people would support the
concept of absolute freedom of expression. The hoary example of
shouting "Fire!" in a crowded theater comes instantly to mind.
Most of us would agree that there ought to be limits on our
freedom of expression for the simple safety of the public.

Another abuse of the freedom of expression would be to make a
false statement of fact that others could be expected to rely
upon when making a decision to purchase something. If an
automobile manufacturer were to claim his car came equipped with
an airbag and the purchaser found out after an accident that the
claim was false, surely that would be an abuse of free
expression.

It would probably be fair to say that most Indonesians would
consider it an abuse of free expression if they were to buy a
food product advertised as being consistent with Islamic dietary
law only to find out after having consumed it that it was made
from pork. One cannot simply be free to say whatever one wishes
regardless of the consequences.

On the other hand, no believer in the principles of liberty or
democracy would accept that those principles are consistent with
the arrest and fining or incarceration of a journalist who
publishes an opinion critical of an incumbent leader. True
believers in the fundamental principles of democracy would agree
that the press should be free to criticize, object to, exhort,
rail against and recommend alternatives to the current power
structure. Government control over the press is not consistent
with democracy. Unless the truth has an outlet for expression,
the people would be insufficiently informed to be able to
exercise their democratic right to decide among the candidates at
the polls.

But therein lies the key to helping us find a comfortable spot
between the rock of totalitarianism and the hard place of
absolute freedom. Truth.

If truth is considered by the courts to be the ultimate test
of all claims of fact, we have a starting point for laying a
foundation of laws governing freedom of speech and, by extension,
the press.

Libel is the publication of information or statements
damaging to a person's reputation. Such is a dictionary
definition. A reasonable libel law, however, permits one absolute
defense..that the statement was the truth.

A journalist therefore would be within his rights to report
that a politician is corrupt, if he was able to support the
accusation with objective evidence. On the other hand, that
official could reasonably file a libel suit if there was no truth
to the statement. A civil court could then determine the level of
damage caused, if any, by an accusation that was determined to be
groundless and award appropriate damages to the victim of the
libel, including punitive damages, if the court was of the
opinion that there was sufficient malice to justify punishment as
well as compensation.

The upshot of these measures and countermeasures is this: In
order to be considered libelous and deserving of judicial censure
and punishment, a published statement must actually be damaging
to a person's reputation (merely ruffling a VIP's sensitive
feathers isn't sufficient), it must be false and it must have
been maliciously intended.

If the statement's publication meets all these conditions,
civil measure may be brought to bear. And significantly, contrary
to the instinctive beliefs of politicians, it ought to b e harder
to win a libel case against someone who has commented on a public
figure than someone who is accused of libeling a private
individual. Being a public figure is a choice, and choosing
public life entails choosing a higher degree of scrutiny and a
higher standard of behavior. No one is forced to run for public
office.

There is no need for the criminal justice system to step in
when what is at issue is a statement concerning the character of
a public official. If a journalist merely sates that, in his
opinion, a public official is objectionable, but makes no factual
claims, the official in question simply has to accept that an
opinion is being expressed. He is, of course, free to disagree
with it and express a contrary opinion. That is the nature of
public life. And that is the nature of freedom.